After you’ve won – appeal outcomes and delays

Advisers report delays in First-tier Tribunal (FtT) decisions on universal credit (UC) being implemented by the DWP. Jessica Strode explains what claimants can do when a FtT decision appears not to have been given effect.

In general terms, the DWP should carry out the FtT’s decision straight away. What this means in practice depends on whether or not the FtT decision is an ‘outcome decision’.

The FtT makes an outcome decision in the following ways.

Your client receives a fostering allowance from their local authority. The DWP determines that your client satisfies the basic conditions of entitlement to UC and has determined your client’s maximum amount, but decides that their income is too high and they do not therefore meet the financial conditions under section 5 of the Welfare Reform Act 2012. The FtT decides the fostering allowance is disregarded and your client is therefore entitled to UC. Since the DWP has already determined entitlement other than incorrectly including fostering allowance as income, it already knows how much benefit your client is entitled to and from when.

Your client was awarded UC on 1 January 2024 and receives the standard allowance of £393.45 each month. The FtT decides that your client is also entitled to the limited capability for work and work-related activity (LCWRA) element from 1 June 2024.

The DWP does not need to work out how much your client’s award is from 1 June 2024, as it has already determined that your client meets the basic conditions of entitlement to UC and the financial conditions. The DWP only needs to pay the additional fixed amount of £416.19 a month from 1 June.

Your client’s UC was terminated due to a failure to provide information under regulation 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (‘the D&A Regulations’). The claimant appeals because less than one month had elapsed since the requirement was made. The FtT sets aside the DWP’s termination decision and UC is reinstated under the original entitlement decision – ie, on the same terms as before the termination.

In all three examples, there is no new calculation for the DWP to do and no new decision for the DWP to make to give effect to the FtT decision. The FtT’s decision is an outcome decision.

There are situations where the FtT might not make an outcome decision. Instead, it might issue a decision that addresses the specific issue under appeal and then send the case back to the DWP for a new outcome decision. It is important to recognise an FtT decision that is not an outcome decision.

A non-outcome decision will:

The right to reside is just one factor in determining entitlement to benefit. Even if the FtT confirms a claimant has a right to reside, other aspects, such as income and capital, probably still need to be assessed by the DWP before a final benefit amount can be decided.

In R(IS) 2/08, for example, the FtT determined the claimant’s capital to be £7,650. However, the tribunal did not calculate the final benefit entitlement because other sources of income and capital needed to be considered. The case was remitted back to the DWP to complete this assessment and issue a new outcome decision.

Understanding the distinction between outcome and non-outcome decisions is necessary to know what remedies are available if an FtT decision is not given effect.

In practice, the DWP usually implements either type of FtT decision unless it is planning to appeal.

Under regulation 44(2)(b) and (4) of the D&A Regulations, the DWP can suspend making payments due: following an FtT decision where it is within time to attempt to appeal (one month from the decision or receipt of reasons) and is considering appealing or is actually in the process of appealing or seeking permission to appeal.

When a benefit is suspended under regulation 44(2) of the D&A Regulations, the DWP must give written notice ‘as soon as reasonably practicable’ of any application to the FtT for a statement of reasons, for permission to appeal or of the making of an appeal. Your client should therefore know if the DWP is intending to appeal the FtT decision. If you do not know, you can ask the Courts Service if it has received a request for reasons or a permission application using the webchat function at: appeal-benefit-decision.service.gov.uk/benefit-type (see button for ‘Start web chat’).

If the DWP has requested a statement of reasons, this indicates it is considering appealing the FtT decision and, unless the claimant is experiencing hardship,1DWP, Suspension and Termination Guide, para 1052, gov.uk/government/publications/suspension-and-termination-of-benefits-staff-guide is unlikely to give effect to it until it has either decided not to appeal, or has done so and that appeal has been decided in your client’s favour.

If the time limit to request a statement of reasons and/or to appeal have passed, the DWP has no power under the D&A Regulations not to give effect to the FtT decision. This either means the DWP must pay the claimant in accordance with its entitlement as decided by the FtT, or where the FtT has not made an outcome decision, to make a new outcome decision within a reasonable time.

If the FtT has made an ‘outcome decision’, your client could consider sending a judicial review pre-action letter, arguing that the DWP is acting unlawfully contrary to regulation 46 of the D&A Regulations, under which the DWP must pay a benefit which has been suspended where there are no outstanding issues to be resolved, and under regulation 47 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (‘the C&P Regulations’), which provide that arrears of benefits must be paid ‘within seven days of the last day of the assessment period’ or if not possible ‘as soon as reasonably practicable thereafter’.

A judicial review pre-action letter may resolve the issue for your client, but be aware that if it does not, your client is unlikely to be able to issue judicial review proceedings unless they are eligible for legal aid (due to the cost).

Alternatively, your client could consider making a money claim through the county court (a letter before claim will also be required under the Pre-action Protocol for Debt Claims). The arrears of benefit (as decided by the FtT) are due immediately and should be paid ‘as soon as reasonably practicable’ (regulation 47 of the C&P Regulations, either in full or in instalments (regulation 47(6A)).

Caselaw confirms that a claimant can sue for benefit arrears as a normal debt – eg, Jones v Waveney DC [1999] 33 HLR 3.2rightsnet.org.uk/pdfs/Waveney_v_Jones.pdf If the DWP does not respond to the claim, the court will issue a judgment in default, and your client will then be able to enforce that judgment. See gov.uk for more information on enforcing county court judgments.3gov.uk/make-court-claim-for-money/enforce-a-judgment Note, however, that your client may be liable for costs.

CPAG would be interested to hear if anyone successfully sues the DWP for arrears of benefit.

If the FtT has remitted the case back to the DWP, the DWP should then have done an assessment/calculation or asked the claimant to provide such evidence/information as needed to enable it to make either a new outcome decision, or to carry out an assessment to give effect to the FtT’s decision.

If it has not done so, your client can challenge the DWP’s failure as a straightforward unreasonable delay in deciding a claim or superseding an award – CPAG has a template judicial review pre-action letter you can use (contact jrproject@cpag.org.uk). If the DWP has requested written reasons from the FtT but is out of time to appeal, point this out in your letter in the ‘this is not a complex case’ section. Note: if there is an ongoing delay or failure to pay, or to make a decision, time has not started to run for judicial review.